As eviction moratoriums change, who is protected in N.J.?

Moratoriums and executive orders put in place to keep renters in their homes during the coronavirus pandemic are expiring across the country while health concerns and high unemployment rates continue.

But even as the Centers for Disease Control reinstates a 60-day eviction ban for parts of the country — a ban President Joe Biden has conceded may not be legal — a new law signed by Gov. Phil Murphy Wednesday will keep many vulnerable renters from being locked out of their homes before the end of the year.

Compounded with the CDC’s eviction freeze, housing advocates say New Jersey is home to some of the strongest protections and eviction moratoriums. But questions still persist for renters facing eviction.

Who’s protected under the New Jersey moratorium?

Through Aug. 31, New Jersey households with an annual income 80% above the county median but below 120% will be protected from evictions over nonpayment of rent, habitually late payments, or refusal to pay a rent increase, according to the new law signed Wednesday.

For those households making under 80% of the annual county median income, tenants can’t be kicked out until Dec. 31, 2021.

However, for tenants who face eviction for other reasons — varying from disorderly conduct to assaulting neighbors to lease violations — proceedings may resume.

Through an executive order at the height of the first wave of coronavirus cases, Murphy previously enacted an eviction moratorium stopping tenants from being locked out of their homes, which was originally extended through Jan. 1, 2022.

And although landlords could continue filing for eviction, the courts have remained closed, keeping landlord-tenant trials on hold until Sept. 1.

The new CDC eviction moratorium

Until Wednesday's bill signing, New Jersey's eviction moratorium went further than the federal protections, said Staci Berger, CEO of Housing & Community Development Network of New Jersey.

The CDC's new issuance stops evictions through Oct. 3, 2021 for homes in counties with "substantial" or "high" rates of transmission of COVID-19. Tenants must certify under penalty of perjury their income levels — 2020 incomes must be less than $99,000 for an individual, $198,000 for a couple — and that they are doing their best to make payments, but cannot pay due to the pandemic.

As of Wednesday afternoon, every county in New Jersey besides Warren County fell under that protection. Federal officials say it covers 90% of the country.

Lisa Ryan, spokeswoman for the Department of Community Affairs, stressed a big change under both the CDC and New Jersey protections is households must file certified paperwork to be protected as a "covered person."

"Most people in New Jersey didn’t file for the CDC moratorium before because New Jersey’s protections were more comprehensive and automatic, but people need to be aware that neither of these protections — CDC or New Jersey — are automatic," Ryan said.

If renters don't file a letter with their landlord and certify to the state that they can't make rent payments due to the COVID-19 pandemic and that they applied for eligible rental assistance, they won't be protected under the federal or state moratorium.

There's a chance the CDC moratorium will be struck down by the U.S. Supreme Court. Justices previously decided that Congress needs to pass legislation to extend a federal eviction moratorium, but the court allowed the previous one to expire on July 31. The CDC extended the moratorium on Aug. 3 after a protest from the Democratic Party's liberal flank led by Cori Bush (D-Missouri), though Biden conceded this week "the bulk of the constitutional scholarship says it’s not likely to pass constitutional muster."

There's also a gray area between Aug. 31 and Oct. 4, when some homes may no longer be protected by the state's moratorium, but could see federal protections — if they have not been struck down — depending on the transmission rates.

New Jersey housing advocates say they aren't too worried whether the federal mandate withstands legal challenges, because the Garden State is offering protections to million of renters anyway.

"I think the infrastructure put in place through this bill is the most appropriate way of dealing with rental debt and continuing to protect tenants," said David Brogan, executive director of the New Jersey Apartment Association, a landlord advocacy group.

Turning rent into civil debt

Tenant and landlord advocacy groups say the state will likely fend off the "tsunami of evictions" they have been worried about since the pandemic.

Any unpaid rent accrued between March 2020 and August 2021 will become civil debt and can't be used as the basis for an eviction. Landlords will need to fight for that money judgment in civil court, but still can't remove tenants from the property.

People who make less than 80% of the county median income will see their cases dismissed through December 2021. That will dismiss many of the 60,000 eviction cases filed since March 2020, Brogan said, whether or not the CDC moratorium is still in play.

Still, it's unclear whether trials can resume as the federal moratorium stands. New Jersey intends to begin landlord-tenant trials again on Sept. 1, but the federal moratorium bans eviction proceedings.

"We are reviewing the order issued by the CDC to determine how it affects New Jersey and will continue conversations with the state Department of Community Affairs," a courts spokeswoman said.

Brogan said New Jersey's approach to alleviating eviction filings while getting the landlord-tenant economy back on track should be a model for the rest of the country grappling with how to handle an unprecedented housing crisis.

"I just think one of the things people should realize is that what New Jersey did is one of the most pragmatic and intelligent ways to address this issue in a phased out matter," he added. "Landlords and tenants are inextricably linked, so when one fails, we all fail."